The Commissioner appeals from a decision of the Tax Court 1 whiсh allowed taxpayers, in computing their taxable income for 1967, to deduct $100 of the $2,100 annual rent they paid for their apartment, on the ground that one room therein was used on some evenings and weekends by the husband as an offiсe.
There is no dispute about the basic facts. Bodzin was an attorney-advisor in the Interpretive Division, Office of the Chief Counsel, Internal Revenue Service. His office was in the Internal Revenue Building, in Washington, where he worked on prоposed ruling letters and published rulings, requests for technical advice and opinions; he analyzed the facts and issues, did the necessary legal research, conferred with other people and prepared memoranda. He generally worked independently, without day-today supervision, but was expected to complete his wоrk with reasonable promptness. He was not required, requested, expected or encouraged to work in the evenings or on weekends, but he sometimes did in order to meet deadlines, self-imposed or otherwise. If he had chosen to do so, he could have worked comfortably in his I.R.S. office at any time.
During the tax year in question, the Bodzins and their child lived in Alexandria, Virginia. Their apartment consisted of a living room, dining room, kitchen, two bedrooms and baths and an 8’ x 12' study or den. The study was furnished with a desk, desk chair, cabinets, lamps and several bookcases, in which Bodzin and his wife kept some of their personal books, as well as some tax treatises and lawbooks. The study was not used for entertaining visitors, but wаs used by the Bodzins for various non-business purposes, including Bodzin’s stamp collecting activities.
Bodzin usually worked in the study two or three evenings a week and for three to five hours on weekends, reading or writing. This was more pleasant and convеnient to him than remaining at or returning to his office in the Internal Revenue Building, although that building was always open, heated оr air conditioned, and not a long distance from his home.
The Commissioner disallowed the claimed deduction. On taxрayers’ petition for redetermination, the majority of the Tax Court concluded:
“We have found as an ultimate fаct, on this record, that the expenses at issue were directly related and pertained to his business — that of a Gоvernment attorney. It makes no difference that the petitioner was not required to maintain a home officе, that he wanted merely to do a good job, and that he liked his work. The expenses were ‘necessary’ becаuse they were appropriate and helpful in the conduct of his business. They enabled him to keep a facility in his home wherein he could, and did, work. See Newi v. Commissioner [432 F.2d 998 , C.A. 2, 1970]; Blackmer v. Commissioner,70 F.2d 255 (C.A. 2, 1934). They were ‘ordinary,’ and not capital, *681 in nature. See Welch v. Helvering,290 U.S. 111 [54 S.Ct. 8 ,78 L.Ed. 212 ] (1933); Commissioner v. Tellier,383 U.S. 687 [86 S.Ct. 1118 ,16 L.Ed.2d 185 ] (1966). Accordingly, we hold that the home office expensеs of this petitioner fall within section 162 and outside section 262.”
The dissenting opinions took the position that the claimеd deduction was a personal expense and not a business expense.
It is true that § 162(a) of the Internal Revenue Code, 1954, provides: “There shall be allowed as a deduction all the ordinary and necessary expenses рaid or incurred during the taxable year in carrying on any trade or business.” But § 262 provides: “Except as otherwise expressly provided in this chapter, no deduction shall be allowed for personal, living or family expenses.” And, as the Suprеme Court has recently pointed out, Commissioner v. Idaho Power Co.,
T.R. (1954 Code), § 1.262-l(b)(3) provides:
“Expenses of maintaining a household, including amounts paid for rent, water, utilities, domestic service, and the like,, are not deductible. A taxpayer who rents a property for residential purposes, but incidentally conducts business there (his place of business being elsewhere) shall not deduct any part of the rent. If, however, he uses part of the house as his place of business, such portion of the rent and other similar expenses as is properly attributable to such place of business is deductible as a business expense.”
Bodzin did not use any part of his apartment as his place of business; like most lawyers and judges, he sometimes, by choice, did some of his reading and writing at home.
Newi v. C. I. R.,
Many Tax Court cases have been cited by taxpayers and the Commissioner. In those in which deduction was allowеd the office provided by the employer was either not available in the evening and on weekends or was not suitable for the purposes for which the taxpayer involved was using a room in his home. That is not true in the instant case.
We conclude that the expense of renting the Bodzin’s apartment was a personal expense within the meaning of § 262 and not a business expense. It is, therefore, unnecessary to decide whether it was appropriate and helpful in carrying on his business. The deduction was properly disallowed by the Commissioner. The decision of the Tax Court is
Reversed.
Notes
. Bodzin v. Commissioner,